Uncertified police report is inadmissible

Rivera v GT Acquisition 1 Corp., 2010 NY Slip Op 03158 (1st Dept. 2010)

“The motion court properly disregarded the uncertified police report and unauthenticated photographs as they constituted inadmissible hearsay”

In all fairness to Plaintiff, the courts have really been all over the place with the necessity of a police report to be certified.  On some days, they say it is admissible in accordance with CPLR 4518(a) because a foundation may be imputed based upon the duties of the police officer.  Other days, the courts have held that the police report contains admissions, which are admissible against the declarant.  Now today, they have held that an uncertified police report is inadmissible.

Go figure.

A family court non-payment of child support petition spurs an interesting 4518(a) case

Matter of Fortunato v Murray, 2010 NY Slip Op 03122 (2d Dept. 2010)

“Contrary to the Family Court’s general statement of the applicable law, “[a] physician’s office records, supported by the statutory foundations set forth in CPLR 4518(a), are admissible in evidence as business records. However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor’s opinion or expert proof” (Matter of Bronstein-Becher v Becher, 25 AD3d 796, 797 [internal quotation marks and citations omitted]; see Batts v Rutrick, 298 AD2d 417; Napolitano v Branks, 141 AD2d 705, 705-706). Moreover, a physician’s office records “may be received as evidence despite the fact that a physician is available to testify as to the substance and contents of the records” (Napolitano v Branks, 141 AD2d at 705-706; see Clarke v New York City Tr. Auth., 174 AD2d 268). Here, upon the father’s appeal of the Family Court’s order, this Court does not have the benefit of the actual medical documents in dispute since the documents are not part of the original papers before this Court. Thus, from the record, it is unclear whether the subject documents were the type which this Court views as admissible. Accordingly, we remit the matter to the Family Court, Nassau County, for a review by the Support Magistrate of the subject medical documents in light of and pursuant to the aforementioned standard as to admissibility.”

This case tells us a few things about business records and medical opinions.  First, day to records, i.e., soap notes, treatment logs, and other day to day documentationare admissible as business records.  As we also learned in Faust v. McPherson, 4 Misc.3d 89 (App. Term 2d Dept. 2004), an employee of the physician or the medical facility can lay this foundation.  Second, medical reports are admissible as business records except for the portion that contains “the doctor’s opinion or expert proof”.

Keep this in the back of your head when you are a plaintiff in an IME cut-off case and you want to have an expert opine on the medical records subsequent to the IME cut off.  As a defendant, keep your eyes open for when you see certain violations of the above-stated rule.

On the mark

IAV Med. Supply, Inc. v Progressive Ins. Co., 2010 NY Slip Op 50433(U)(Civ. Ct. Richmond Co. 2010)

Here is a civil court decision from Judge Dollard in Civil Richmond, which is well written and correct in all respects on the law.  First, she found that a 3101(d) demand, although tardy, was proper since plaintiff was not in any way prejudiced.   Second, she found that a claims representative could not lay a foundation for entry into evidence of the report of a a non-testifying peer review doctor.  Why someone would go down this road, especially with Pine Hollow being reversed, boggles my mind.  Moreover, I also tend to think that the admission of a peer report into evidence is tantamount to improper bolstering, since the report memorializes what the doctor – or his substitute – will testify about.  It is similar to a police officer telling a jury that the complainant identified the defendant, after the complainant herself identified the defendant to the jury.   Those of you who have a criminal practice know that this is improper.   People v Trowbridge, 305 NY 471 (1953).

As to whether the doctor, through his testimony satisfied his burden of persuasion, I have no idea; and for purposes of this discussion, it is irrelevant.  What is relevant, however, is the path this court took to reach its decision.  And this was “on the mark”.

Intervenor major medical insurance carrier tried to recoup settlement proceeds between the injured person and the tortofeasor – but to no avail

Reiss v Roadhouse Rest., 2010 NY Slip Op 01632 (2d Dept. 2010)

“At the hearings before the JHO, the intervenors failed to prove that GHI was entitled to reimbursement under its insurance contract with the plaintiff. More particularly, the intervenors failed to prove that any part of the settlement proceeds in this action included a recovery for past medical expenses and, thus, could not demonstrate that GHI was entitled to the reimbursement of medical benefits it paid on the plaintiff’s behalf. The intervenors’ sole witness, the attorney representing Healthcare Recoveries, which itself was only an agent retained by GHI to pursue the reimbursement claim, was not qualified to testify regarding the terms of the health insurance agreement between GHI and the plaintiff (see Franklyn Folding Box Co. v Grinnell Mfg., 234 AD2d 505, 506), and his testimony that the plaintiff’s past medical expenses were considered by the parties in reaching their settlement was mere speculation based upon inadmissible hearsay (see generally Matter of Hausknecht v Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778, 779). The intervenors also improperly sought to prove the amount of GHI’s claim by seeking to admit into evidence, as a business record, the consolidated statement of benefits prepared by Healthcare Recoveries from information it obtained from GHI. Since the intervenors’ sole witness also was not qualified to give testimony regarding GHI’s record-keeping practices, that document should not have been admitted into evidence (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495).”

Many times – and this is happening more frequently – the injured person seeks to have post no-fault IME medical treatment paid for through his or her major medical carrier.  When a personal injury case settles or even is tried to a verdict, the major medical carrier through their collection agent will usually attempt to recoup the paid-out benefits against the injured person through recovery on the underlying lien.  This will take place in the context of a Civil action.  The injured person, assuming there is no assignment of benefits, will then bring a third-party against the no-fault carrier.

The no-fault carrier is subject to suit in a contractual and contribution role of sorts.  As we can see, the collection agent of the major medical carrier has some hurdles – not insurmountable but significant – to recoup the benefits from the injured person.  Should the major medical carrier fail to make a prima facie case as seen above in Reiss, then the no-fault carrier is not on the hook.

Finally, and somewhat related is that the collection agent cannot get around the business record foundation necessary to put the documentation and interpretation of the major medical carrier’s records into evidence.

This case is interesting to say the least.

Business records and admissions

An interesting case from the First Department came out on this topic.   It it discussed on the evidence blog.  It is worth a read.  Click here.

Proving standing without an assignment?

Since proof of standing is generally not an affirmative part of a no-fault claimant’s prima facie case, this case from the First Department might be of minimal importance to the no-fault bar.  For those of us who are called to help friends, loved ones and members of the armed services avoid foreclosures, the “assignment” defense has scored major victories at the Appellate Division, Second Department.

The matter of IRB-Brasil Resseguros S.A. v Eldorado Trading Corp. Ltd., 2009 NY Slip Op 09395 (1st Dept. 2009), takes away some steam from this defense as set forth herein:

“Plaintiff’s original motion for summary judgment was denied because of the court’s concern that the Euroclear statement and other documents suggested that BB Securities, rather than plaintiff, may have been the true holder under the terms of the note. Plaintiff moved to renew, submitting an affidavit by BB’s managing director, clearly averring that it held the note solely as custodian for plaintiff, as well as an assignment agreement between BB and plaintiff, establishing the latter’s exclusive entitlement to sue under the note. Under these circumstances, the court providently exercised its discretion in granting renewal in the interest of justice (see Garner v Latimer, 306 AD2d 209 [2003]). The additional affidavit by an officer familiar with the corporate records, accompanying a true copy of the assignment agreement, was admissible (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]), and established plaintiff’s entitlement to summary judgment.

In view of our finding that summary judgment was correctly granted upon renewal, we dismiss plaintiff’s appeal of the denial of its original motion for summary judgment as academic. However, had we not done so, we would hold that plaintiff met its prima facie burden on the initial motion for summary judgment by submitting evidence of defendant Eldorado Trading’s promise to pay under the note, the guarantee by defendants Eldorado S.A. and Verpar, and nonpayment (see Eastbank v Phoenix Garden Rest., 216 AD2d 152 [1995], lv denied 86 NY2d 711 [1995]). Plaintiff also submitted evidence demonstrating it had purchased the note, which was held by BB Securities on its behalf in a secure account at Euroclear. Contrary to defendants’ contention, the affidavit of a corporate officer with personal knowledge, together with [*2]authenticated business records, is admissible in support of a motion for summary judgment (see First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]).”

This case also has a rare appearance of the “interest of justice” exception to the general rule that renewal is not allowed unless new facts are presented.  It also has a standard business records discussion.  I will cross-link this on the evidence blog.

Business records – when was the data entered and who could enter it?

In another interesting evidentiary based case, the Fourth Department in People v Manges,  2009 NY Slip Op 08258 (4th Dept. 2009) evaluated the “contemporaneous” and “business duty to enter the information” prongs of the business record rule.  As you can see, the People failed miserably in their marshaling of the evidence to prove pivotal elements of the crimes of felony possession of a forged instrument and attempted grand larceny.

“We agree with defendant that County Court erred in admitting in evidence a printout of electronic data that was displayed on a computer screen when defendant presented a check, the allegedly forged instrument, to a bank teller. The People failed to establish that the printout falls within the business records exception to the hearsay rule (see CPLR 4518 [a]), which applies here (see CPL 60.10). The People presented no evidence that the data displayed on the computer screen, resulting in the printout, was entered in the regular course of business at the time of the transaction (see CPLR 4518 [a]). Indeed, the bank teller who identified the computer screen printout testified that “anyone [at the bank] can sit down at a computer and enter information.” Because the computer screen printout was the only evidence establishing the identity of the purported true account owner upon which the check was drawn, we conclude that the evidence is legally insufficient to support the conviction.”

Assignments and business records – a deadly combination

The Fourth Department in Palisades Collection, LLC v Kedik, 2009 NY Slip Op 08259 (4th Dept. 2009) discussed standing and the business record rule, all in one decision.  Interestingly, the failure to get the assignment of benefits into evidence proved fatal to the Plaintiff Assignee’s prima facie case.  I think Judge Billings 5 years ago wrote a similar decision in the no-fault realm, prior to the Appellate Division and Court of Appeals’ decisions, which held that technical standing is not part of a plaintiff’s prima facie case.

For those who venture outside no-fault and deal with assigned actions, here is how the Fourth Division evaluates these issues:

“Plaintiff, as the alleged assignee of Discover Bank (Discover), commenced this action for breach of contract and account stated seeking to recover the balance owed on a credit card issued to defendant. Supreme Court denied in part plaintiff’s motion for partial summary judgment dismissing seven of the affirmative defenses, reserved decision in part, and ordered plaintiff to provide evidence that it had standing. Following plaintiff’s further submissions, the court concluded that plaintiff failed to provide admissible evidence of its standing and sua sponte granted defendant summary judgment dismissing the complaint. We affirm.

To establish standing to sue, plaintiff was required to submit admissible evidence that Discover assigned its interest in defendant’s debt to plaintiff (see generally Rockland Lease Funding Corp. v Waste Mgt. of N.Y., 245 AD2d 779). Here, plaintiff submitted an affidavit from its agent with exhibits, including a printed copy of several pages from an electronic spreadsheet listing defendant’s Discover account as one of the accounts sold to plaintiff. Contrary to the contention of plaintiff, the court properly determined that it failed to establish a proper foundation for the admission of the spreadsheet under the business record exception to the hearsay rule (see generally Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531).

A business record is admissible if “it was made in the regular course of any business and . . . it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter” (CPLR 4518 [a]; see generally People v Kennedy, 68 NY2d 569, 579-580). “A proper foundation for the admission of a [*2]business record must be provided by someone with personal knowledge of the maker’s business practices and procedures” (West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950). Although plaintiff’s agent averred that the spreadsheet was kept in the regular course of business and that the entries therein were made in the regular course of business, the agent did not establish that he was familiar with plaintiff’s business practices or procedures, and he further failed to establish when, how, or by whom the electronic spreadsheet submitted in paper form was made (see CPLR 4518 [a]; West Val. Fire Dist. No. 1, 294 AD2d at 950). Furthermore, although an electronic record “shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record” (id.), plaintiff’s agent failed to establish that the printed electronic spreadsheet submitted to the court was a true and accurate representation of the electronic record kept by plaintiff.”

A physician’s affirmation and a chiropractor’s affidavit will prove the lack of medical necessity of medical equipment

In our latest adventure to the Appellate Term, entitled  Exclusive Med. Supply, Inc. v Mercury Ins. Group, 2009 NY Slip Op 502273(u)(App. Term 2d Dept. 2009), we appealed a decision from the lower court that denied, outright, our motion for summary judgment.

This case centered around peer review doctors who rendered opinions finding that certain supplies lacked medical reasonableness.  Annexed to the peer reports were all of the documents that the peer doctors’ relied upon.  A proper affirmation from the peer review physician and an affidavit from the peer review chiropractor were procured, thereby placing the documents before the court.  A claim representative’s affidavit placed the denials into evidence and demonstrated the timely handling of the denials.  Importantly, and I cannot stress this enough, the documents the peer reviewers examined were annexed to the motion papers.

In opposition, Plaintiff made all of the arguments that one sees in this practice.  Those include: (a) The denials were not mailed; (b) The documents were not in admissible form; (c) The peer reviews constitute inadmissible hearsay; (d) The peer reviewers were not properly qualified as experts; and (e) Medical necessity cannot be adjudicated on a summary judgment motion and always creates an issue of fact.

The lower court believed that Plaintiff’s submissions were sufficient to deny our motion.  This necessitated an appeal and the instant decision.

I think this case is somewhat important because it cites to Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, for the propositions that a peer hearsay challenge is generally without merit.  I also think the “expert witness” challenge lacks merit where the doctors state what their specialty is on the peer or IME reports and there is no evidence to demonstrate that the IME or peer reviewer is not what he or she purports to be.

A physician's affirmation and a chiropractor's affidavit will prove the lack of medical necessity of medical equipment

In our latest adventure to the Appellate Term, entitled  Exclusive Med. Supply, Inc. v Mercury Ins. Group, 2009 NY Slip Op 502273(u)(App. Term 2d Dept. 2009), we appealed a decision from the lower court that denied, outright, our motion for summary judgment.

This case centered around peer review doctors who rendered opinions finding that certain supplies lacked medical reasonableness.  Annexed to the peer reports were all of the documents that the peer doctors’ relied upon.  A proper affirmation from the peer review physician and an affidavit from the peer review chiropractor were procured, thereby placing the documents before the court.  A claim representative’s affidavit placed the denials into evidence and demonstrated the timely handling of the denials.  Importantly, and I cannot stress this enough, the documents the peer reviewers examined were annexed to the motion papers.

In opposition, Plaintiff made all of the arguments that one sees in this practice.  Those include: (a) The denials were not mailed; (b) The documents were not in admissible form; (c) The peer reviews constitute inadmissible hearsay; (d) The peer reviewers were not properly qualified as experts; and (e) Medical necessity cannot be adjudicated on a summary judgment motion and always creates an issue of fact.

The lower court believed that Plaintiff’s submissions were sufficient to deny our motion.  This necessitated an appeal and the instant decision.

I think this case is somewhat important because it cites to Pan Chiropractic v. Mercury and PLP Acupuncture v. Progressive, for the propositions that a peer hearsay challenge is generally without merit.  I also think the “expert witness” challenge lacks merit where the doctors state what their specialty is on the peer or IME reports and there is no evidence to demonstrate that the IME or peer reviewer is not what he or she purports to be.